Children and young people have the right to participate in the process of forming decisions – judicial and administrative – that concern them. This is the result, first, of several international conventions signed by the Portuguese State, namely the Charter of Fundamental Rights of the European Union, the United Nations Convention on the Rights of the Child and the European Convention on the Exercise of the Rights of the Child. The right to participate implies that the child is heard and her opinions taken into account. The right to be heard is therefore a component of the principle of participation, alongside others, such as the right to information, to be represented by a lawyer, etc.
In custody lawsuits children shall be heard in court, whenever they are 12 or, if younger, if the court rules that they have sufficient maturity. In these cases, should the parent’s lawyers be present when the court proceeds to hear the children?
The question arises because many judges and lawyers, among which I include myself, understand that the presence of the parents’ lawyers could embarrass and inhibit the child, thus conditioning the authenticity and spontaneity of the child’s statement.
Indeed, it seems unequivocal that children and young people associate their parents’ lawyers with their own parents and imagine that everything they verbalize will be relayed to their parents by their representatives, thus sharpening the conflicts of loyalty so frequent in these proceedings. On the other hand, the hearing of the child in court is already a difficult, distressing time. In fact, it is about revealing private, family facts to strangers in an unknown and perhaps intimidating place. The presence of lawyers would therefore help to dissipate the informal and reserved environment in which the hearing should take place. The psychologists who have spoken out on the subject also advocate the restriction of the presence of lawyers (opinion article written by Rute Agulhas). The General Council of the Bar Association approved, in a session of 29 March 2019, an Opinion authored by Rui Alves Pereira, whose content we fully endorse, where it is advocated that the presence of the lawyers of the parents in child hearing proceedings under Article 5, paragraphs 1 and 2, of the RGPTC should be restricted.
We couldn’t agree more!